Attorneys settle accounts in mining history

Mining, of course, is the oldest profession in Alaska. In the late 19th century the "fancy ladies" followed the miners up to outposts like Juneau and Nome, and then came the lawyers. A motley crew of Alaska mining history buffs told entertaining stories at a panel discussion in Anchorage on Nov. 4, but they also had a serious message about the way disputes over mineral rights necessitated the writing of laws for this unruly territory.

The first attempts at mining in Alaska took place under Russian rule, after Tsar Nicholas I commissioned a mining engineer to make recommendations in 1848.

The tsar then modified the charter of the Russian-American Co. to allow it to develop non-renewable resources, to diversify away from fisheries and furs.

"The first thing the Russians went after was the coal at Port Graham on the Kenai Peninsula," said Tom Bundtzen of Pacific Rim Geological Consulting.

"The labor was virtually the entire Russian battalion from Sitka.

They prepared a shipment of coal.

The real desire was to market that coal to the boom town of San Francisco, California.

It turned out it just wasn't economic.

They couldn't sell it at a profit - their first major effort was an economic failure."

U.S. Army put in charge

Russia washed its hands of Alaska in 1867, leaving its abundance of natural resources to the United States.

Congress specifically did not apply the laws of the United States to Alaska, unlike other places that had been acquired, like the Philippines and other territories, where the laws had been applied.

From 1867 to 1877 the U.S. Army was in command in Sitka.

In 1877 the army was pulled out to fight the Indian wars in Wyoming and Utah, and as a result there was no law at all.

Shortly after the army left, the Tlingits attacked the stockade at Sitka.

A British ship, the Osprey, had to come and keep order.

"Alaska was not under the control of anybody in the United States," said mining attorney J.P. Tangen.

"They had a single person, a lawyer by the way, the customs commissioner, and he was in command."

"Prior to 1884, no one could obtain a U.S. title to a mineral property in Alaska," said Bundtzen. "Mining claims were held by squatters' titles and under common consent, mainly in the form of organized mining councils. Although this period of time was often romanticized in many ways as a true form of democracy with just folks sitting around tables to discuss how a claim could be staked, serious capital wasn't going to come into a territory of the United States without a mining law. As long as there was no clear title to these mineral properties it was just sort of in limbo."

Mining camp rules would change

The rules would change frequently at local mining camps. "They couldn't keep a coherent set of rules and regulations," said Bundtzen. "They had many arguments and many fights because they just didn't have law." The 1872 Mining Law had established a code for the United States, but it wasn't recognized in the territory of Alaska. The first organized laws occurred after Joe Juneau and Richard Harris discovered gold in 1880.

Engineer George Pilz had started a lode mine in Silver Bay, near Sitka, and he employed Joe Juneau and Richard Harris to work there. "Along comes Chief Kowee and he says hey, you guys looking for yellow rocks? I got a couple," said Tangen. "And so Pilz hired Harris and Juneau to go find out where Kowee had gotten these yellow rocks." Chief Kowee was an Auk Tlingit from southeast Alaska, where the state capital would subsequently be located and named after Juneau (although at first it was briefly called Harrisburg, after Harris).

"Just about this time another fellow by the name of Fuller was a merchant at Sitka," said Tangen. "While Pilz grubstaked Harris and Juneau to go find the gold in Juneau, Fuller provided the grub. The agreement basically was that anything that they found, Fuller and Pilz would get the first crack at the mining claims, and they could locate the other claims in their own name. So Juneau and Harris headed off toward Juneau, what's come to be known as Juneau, and I think the first trip they actually went out on a bender and they came back empty-handed, but the second trip they showed up and they immediately located some mining claims, and this was on October 4, 1880."

Mining district created at Juneau

In the absence of laws, Harris and Juneau decided to create a mining district. "And so Dick Harris took his notebook out of his pocket, made a notation of the mining claims, they formed the Harris Mining District, and Harris put the notes back in his pocket, and they located the Fuller First Mining Claim, and then they located a placer claim," said Tangen. "The Fuller First Claim was a lode claim. About 100 feet of the placer claim extended over on top of the Fuller Claim."

Harris and Juneau brought samples back to Sitka and when the discovery became news, the U.S. Navy sent a steam launch to the Gastineau Channel area with the first small party of stampeders.

The navy detachment was sent to keep order in the mining camp.

A month later, at Christmas 1880, there were already 30 miners on the ground in Juneau.

A mining meeting took place on Feb. 10.

"The 30 miners who were there were called into a small room and everybody was asked to take an oath that they were a U.S. citizen, and that was the first mining organization, at least in the Juneau area," said Tangen.

"Shortly thereafter the fancy ladies arrived, and right on the heels of the fancy ladies there were the lawyers."

Organic Act passed in 1884

The Organic Act was passed on May 17, 1884, applying the laws of Oregon to Alaska, and a district court was formally organized and a judge appointed. He was the colorful Ward McAllister Junior, who apparently devoted more of his time to women than the law, and only lasted in the position for six weeks. The miners made use of the new legal facilities straight away. "Between May 1884 and October 1886 our friend Fuller had engaged in no fewer than six lawsuits," said Tangen. "He sued Harris twice, Harris sued him twice and then Fuller sued another fellow named Old and another fellow by the name of Church. And of course that's where it all began."

"The Juneau discovery was probably the main reason why the Organic Act had to be passed in 1884," said mining historian Chuck Hawley.

"They'd been operating under trespass and basically there weren't enough people to make civil law worthwhile, but Juneau was a substantial discovery and that's what triggered it.

The real significance of Juneau is that Alaska had to have civil law.

The 1884 act established one court that I think met in Sitka and Wrangell, and then there were some U.S. commissioners.

By the discovery of the Klondike and earlier, the discovery of Eagle City and Circle, you had people up in the Interior that needed law.

Then Nome happened in 1898 and that was going to be a huge development, there were going to be thousands of people arriving in Nome in 1900.

So you had these impetuses at the same time."

Claims jumped at Nome

One more court was established at Eagle City, and another at Nome.

The "lucky Swedes" who found gold at Nome had their claims jumped almost immediately.

An attorney named Hubbard, representing the claim-jumpers, brought in Alexander McKenzie from New York, "who was a great crook as well as being a terrific political power back in the upper Midwest, Minnesota, North and South Dakota," Hawley said.

"He had several senators in his pocket.

The second court was set up in Nome more or less so McKenzie could pack the court with whoever he wanted to, and the president appointed Arthur Noyes as the judge and the district attorney, the U.S. marshall was a crook, everybody was tied into this situation, but there were good guys involved, too."

The good guys, including the Swedes (and Norwegian), prevailed about a year later and James Wickersham came in as district judge to clean up the mess. "The importance legally was that again the discovery of gold in Circle and Eagle and Nome was the event that made Congress adopt the statute to assign two more courts to Alaska," said Hawley. "So there's a lot of romance, but there's a lot of good, solid history. The mining was important in bringing civil law to Alaska, indirectly."

Alaska still had no legislature, so Congress had to write laws for it, when the laws of Oregon were found lacking.

"Nome was a rowdy place," said mining attorney Joe Perkins.

"Especially when you realize that no one could establish an exclusive right to any land on the beach below the line of mean high water.

The mining laws did not apply to lands below the mean high water." In 1898 Congress had said titles to submerged lands were reserved for the future state that would be created in the territory of Alaska.

"So when gold was discovered on the beaches in Nome, party is one word, riot might be another," said Perkins.

"If you read the current mining law, there are some antique provisions still in there that are designed to deal with the fact that you couldn't have exclusive rights to beach claims in Nome."

Alaska Legislature established in 1912

The Alaska Legislature was established in 1912 and it passed the first mining law in 1913. Judge Thomas Stewart recalled working with Henry Roden in the 1950s. Roden was a miner-turned lawyer who was elected to the territorial senate in 1913 and got to Juneau for its session by mushing a dog team from Iditarod to Valdez, a six-week journey. He got the mining law passed and wrote three pamphlets about it: one in 1913, one in 1947 and one in 1950.

Stewart was also recording secretary for Alaska's Constitutional Convention in 1956. He brought in Vincent Ostrom, then a professor at Oregon State College, to help the committee on natural resources put together the relevant article for the Alaska constitution. When former Gov. Wally Hickel was writing a book recently, he went to see Ostrom, who was at the University of Indiana. "Wally Hickel used that analysis as a substantial basis of his book, Crisis in the Commons, advising that any national government or state government that had their own public lands should take a lesson on how they should be administered from what was being done in Alaska," said Stewart.

Alaska constitution addressed discovery, appropriation

"The Alaska constitution, section 11, article 8, makes its best effort at saying that discovery and appropriation shall be the basis for the initiation of or the acquisition of locatable minerals on state lands," said Perkins.

"And that was the attempt in the Alaska constitution in 1956 to have the state's mining law track as reasonably as possible the federal mining law system of self-initiation." The mining law was written in 1960.

"But they didn't just say we're going to replicate the federal mining law," said Perkins.

"And so they did a couple of things which I think have served the state really well.

The first one was they abolished the distinction between lode claims and placer claims.

When they wrote the statute they just said there will be one kind of claim.

"The second thing they did, in an effort to decrease the need for us lawyers, was to formalize or to create a formal mechanism for establishing temporary pre-discovery rights, so that you did not as an explorer on the land have to be there all the time," said Perkins. "And so they created the formal prospecting site location which allowed one to acquire a fairly large block of land without having a discovery, but it was temporary, for two years basically at a time."

Joe Rudd, one of the founders of the firm of Guess & Rudd that Perkins now works for, drew up the 1960 mining law with the Department of Natural Resources. He died in a plane crash in 1978 at the age of 45 on his way back to Anchorage from Juneau. The Alaska Mining Hall of Fame inducted Rudd into their ranks on the evening of the panel discussion. They also inducted William Sulzer, who developed gold and copper properties in Alaska, but was impeached as governor of New York in 1913. Like the many other dubious historical figures who contributed to this state's prosperity, Alaskans remember Sulzer fondly.